ra A LIMITED DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY No G 620 of 1986 GENERAL DIVISION eee ee Between: SECRETARY OF THE DEPARTMENT OF SOCIAL SECURITY Appellant And: VAN LUC HO CORAM Einfeld J. 12 March 1987 5 PR 1987 FEDBRAL COURT, OF AUSTRALIA INGIPAL AEGISTAY DATE EX-TEMPORE JUDGMENT This is an application by the appellant Secretary for a stay of a judgment of the Administrative Appeals Tribunal ("the Tribunal") given on 28 November 1986 that a decision by the Department of Social Security to refuse entitlement to family allowance to the respondent should be set aside and reconsidered in the light of the reasons given by the Tribunal. > ~ The Secretary of the Department has appealed from that determination of the Tribunal by its amended notice of appeal filed in court' today. Three matters arise for determination on that appeal, two of them from the meaning of the words "custody care and control" in section 6 and section 95 of the Social Security Act 1947 ("the Act"). The other ground of appeal alleges that the decision of the Tribunal was unreasonable and failed to take into account a relevant consideration. Nothing was advanced before me suggesting that the cogency of the last-— mentioned ground was relevant to the issue of the application for the stay. It was not argued at all. Today's application for a stay of the Tribunal's decision is intended to achieve no payments of money to the respondent until the determination of the appeal by this court. There 1s no doubt that if the appeal had substantial merit on its face, a stay would ordinarily be granted, as success in the appeal will mean that no moneys are payable to the respondent. In this particular case one reason for granting the stay would be that the amount immediately payable to the respondent following upon the decision of the Tribunal is, I am informed, in excess of $7,000 and the monthly amount payable hereafter would be $270. If paid to the respondent now, it 1s said that he might have some difficulty repaying it 1f the appeal is successful. I shall return to this argument iater. The facts of the matter are set out in the judgment of the Tribunal and do not now need repetition other than to observe that the family allowance payments in dispute here are payments 1n respect of seven of the respondent's children who reside in Vietnam with his wife, he having escaped the communist regime in Vietnam with other children who came with him to Australia. I am informed that the words "custody care and control" have been defined on a number of occasions by the Tribunal, sometimes in allegedly conflicting or inconsistent ways. Some of the decisions of the Tribunal are referred to in the judgment under appeal, but because of the urgency of determining the stay application, I have not had the opportunity of reading them. I am also informed that no superior court has yet pronounced on the meaning of those words in the social security context, although they certainly have been interpreted and explained at least in family law and maintenance contexts. Counsel for the appellant Secretary in a thoughtful and _ sensitive submission suggested that the definition of "care, control and custody" adopted by the Tribunal in this case, namely, parental autonomy and sovereignty, was too narrow a test and that in fact there should be imposed a wider composite factual test dealt with from case to case. He suggested that "care" means, inter alia, physically caring for the child and being responsive to the needs of the child, both physical and emotional; that "custody" involves having the ability to require the child to move; and that "control" embraces the concept of being able to direct the behaviour of the children. Whilst I accept his argument that parental sovereignty may be a somewhat ethereal or aristocratic term inappropriate for modern-day conditions in Australia govening the relations of parents and children, nonetheless even the acceptance of his terminology suggests that Mr. Van Luc Ho would to the maximum possible extent in the circumstances, pass most, if not all, of the major suggested criteria. I am advised that government does not administer its obligations to pay family allowances by excluding all cases where children live in separate premises to the parents. Some instances were discussed, such as for example, if the children live with grandparents or relatives in another State; if they live in a boarding school; or even if an older daughter were, for example, to be undergoing finishing school in Switzerland. Counsel for the Secretary fairly put these matters as raising questions of degree but did not suggest that such children would ipso facto be excluded from family allowance merely because the children were in fact absent from the home in which the recipient of the family allowance was living. The reasons for decision of the Tribunal inform me (and neither party suggests the Tribunal was erroneous in these respects) that originally this application for family allowance in respect of the children living 1n Vietnam was granted as from 15 January 1984 and was paid until 13 September 1984. Since that time the matter has been progressing through the rather tortuous journey of appeal and review provided by the legislation ~- through the Social Security Appeals Tribunal (which apparently recommended similarly to the Administrative Appeals Tribunal) and reconsideration by Canberra (which ultimately did not follow the recommendations of the Social Security Appeals Tribunal) to the Tribunal. It 1s now three and a half years since payments were last made, and Mr. Van Luc Ho has had to maintain both the Australian and the Vietnamese-based branches of his family on his earnings and unemployment benefits ever since. That his rights to family allowance are _ stili unresolved is a shameful castigation of our system of review. Both the Administrative Appeals Tribunal and the Social Security Appeals Tribunal had before them a Departmental document which purported to set out the reasons why the family allowance was cancelled. Amongst other reasons given were that the respondent: was unable to control the children's movement out of Vietnam; had been forced to leave practically the whole of the custody care and control of his children to his wife for an indeterminate period; could not limit the scope of the delegation (I assume, to his wife); could give no absolute guarantee that he would he able to bring his wife and children to Australia; could not bring the children under his personal control should the circumstances (presumably, of the children's welfare) warrant this. If these reasons are accepted as adequate for the refusal of a family allowance, it would mean that Australian law provided for parents to be refused the allowance who were wholly supporting their children and maintaining them to the maximum of their financial and physical capacity because an authoritarian and autocratic dictatorship imprisoned the children and refused to allow them to travel or migrate to Australia even for family reunion purposes in breach of their entitlement under international law. I cannot believe that the Australian Parliament had this in mind when it included the words, "care, control and custody", in its legislation; nor can I believe that the Department of Social Security 1s or would be so lacking in compassion that it really intends that such cases should not by definition be entitled to the payment of family allowance. Whilst it is understandable that the Department would be wary of making payments im cases where there is doubt about the proper association of the parental recipient of the family allowance and the children in whose Mame and on whose behalf it is paid and received, the Secretary's counsel did not argue that this was such a case. The authoritative definition of the relevant words will, of course, ultimately be a matter for the appeal court on the hearing but in order to grant a stay of the payments which necessarily arise from the Tribunal's decision, I would need to be satisfied that the argument sought to be advanced by the appellant on the appeal had real, persuasive or at least strongly arguable substance. For the reasons I have given, I am unable to have that conviction in this case. Finally, I return to one of the grounds upon which the appellant sought the stay, viz. that Mr. Van Luc Ho would be unable to repay some or any of the money paid if the appeal should in fact be upheld. This assertion appears to me to be very doubtful, to say the least. Mr. Van Luc Ho is apparently in casual employment and receives an unemployment benefit supplement. He has honourably, apparently, carried out his obligations as a citizen since arriving in this country and has certainly been a caring and solicitous husband to his wife and parent to his very large family. The evidence before the Tribunal reveals that without his support, his family in Vietnam would be destitute and perhaps would not survive long enough for any question of their arrival in Australia to be contemplated. It seems to me that he would, upon the arrival of the family in Australia and even before and without their arrival, always be seeking as much work as he could obtain in order to sustain them. If the Department was so minded, it could either seek access to repayment per medium of the unemployment benefit that he was receiving, or such part of it as it thought ought to be deducted for the purpose of repaying any overpayment of family allowance. Alternatively, it could seek to garnishee his wages as a casual or permanent employee. If he was receiving part benefit and part wages, the Department would have access to both sources of funds. Other than the argument, nothing has been advanced to suggest that it is appropriate to speculate adversely to the respondent's honour in this case, apparently not the first case of its kind in which the department has had to consider such questions. The evidence available to me suggests the opposite. In these circumstances it seems to me, on balance, that the decision of the Tribunal should not be stayed. I take into account the fact that 1t does not look likely that this appeal can be heard until the passage of several further months. However, the Department itself took some nine months from the time of receipt of the recommendations of the Social Security Appeals Tribunal to decide that the recommendations of that body were not going to be accepted. I think in the circumstances it should therefore bear whatever risks are involved in the payment of the family allowance flowing from the views under appeal.